1. In this case a conditional order under Section 133, Criminal P.C., was made directing the removal of a certain obstruction to a public cattle track. The opposite party showed cause under Section 135, Criminal P.C., and applied to the Magistrate to appoint a jury to try whether the conditional order was reasonable and proper. The jury was empanelled and they reported that the order was reasonable and proper. Thereupon the Magistrate made the order absolute under Section 139 (1), I. P.C. An application was made before the Court of Session for moving the High Court to set aside the order of the Magistrate. This was rejected and on an application to the High Court this also was rejected. Meanwhile a civil suit was instituted by the opposite party and in that suit a temporary injunction was obtained from the Munsif, Central Court, Comilla, ordering the defendants in that suit not to cut earth or trees from the land in dispute. Obviously that injunction was not directed against the Magistrate and if it had been it would as regards him, have been invalid.
2. The learned Magistrate in these circumstances proceeded under Section 140 (1), Criminal P.C. and gave notice to the opposite party requiring him to perform the act directed by the order within a certain time.
3. Mr. N.K. Basu on behalf of the petitioners in this rule has argued that in the circumstances although it is true to say that the temporary injunction was not directed against the Magistrate still it was proper for him to stay his hand and give no notice to the opposite party to remove the soil and so on because the civil suit had been instituted. The learned Magistrate's view was that he had no discretion under Section 140 (1) and that after the report of the jury he must under Sub-section (1), Section 140, which is mandatory give notice thereunder as required. In our opinion the Magistrate's view was correct. We therefore cannot interfere with the order which he has made. The argument of the learned advocate would have been pertinent if the further proceedings had been taken which are referred to in Sub-section (2), Section 140. The learned Magistrate is given a discretion whether he should give directions to some one else to carry the order into execution and whether he should make the opposite party pay the costs of such proceedings. The learned Magistrate under this -subsection can take into consideration the whole of the circumstance: and decide whether he ought to give the direction referred to in Sub-section (2) or whether ha thinks it expedient to leave the matter where it is until the conclusion of the civil suit. This is a matter for him to decide, but it is open to the opposite party to come to this Court and say that such an order is not expedient and proper: of course it would have to be shown that the learned Magistrate, in exercising his discretion had not done so judicially, otherwise the opposite party will not succeed in inducing this Court to set aside the order. This rule therefore is discharged.
S.K. Ghose, J.
4. I agree.